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Microsoft to Apple: 'Oh, yeah? Well, your font is too small'

Size matters in trademark smackdown

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Microsoft has filed another legal salvo at Apple in the ongoing dust-up over whether the term "App Store" is worthy of being trademarked.

Microsoft's latest argument? That the font Apple used in its response to Redmond's opposition to the trademark application was too small.

Seriously. We can't make this stuff up.

Microsoft also complained that Apple's filing was too long. "Apple's response brief is 31 pages, including the table of contents and table of authorities, and on information and belief, is printed in less than 11 point font," reads Microsoft's Motion to Strike.

"Under the rules," Microsoft continues, "Apple's brief cannot exceed 25 pages in its entirety, including the table of contents and table of authorities, and must be printed in at least 11 point font."

Judge for yourself. Here's a snippet of Apple's rebuttal to Microsoft's Opposition filing:

Detail of Apple's USPTO argument against Microsoft

Naughty, tiny Apple font (click to enlarge)

And here's a sampling of Microsoft's Motion to Strike:

Detail of Microsoft's USPTO argument against Apple

Robust, manly Microsoft font (click to enlarge)

The main body of Apple's rebuttal, for the record, is 25 pages long, the table of contents is two pages, and the table of authorities – settled cases that support Apple's rebuttal – is four pages.

We await Apple's argument that the table of contents and table of authorities should not be counted as part of the allowed 25-page maximum. Perhaps there may also be a discussion of how many of those authorities can dance on the head of a pin.

If you're new to this legal tap dance, a bit of background: in July of 2008, Apple filed an application with the USPTO to trademark the term "App Store". In January of this year, Microsoft filed its opposition, contending that the term was too generic to be trademarkable.

Early this month, Apple responded to Microsoft's objections, citing expert testimony that, among other things, claimed that the term "App Store" – or, in applicationese, "APP STORE" – is used to describe Apple's online store in 88 per cent of the references found in The Corpus of Contemporary American English (COCA), "an online collection of over 410 million words of popular texts."

Apple also tweaked Microsoft for using "a hodge-podge of out-of-context snippets of material" in its opposition filing, and that their counsel's "untutored survey is entitled to no weight whatsoever."

And now Microsoft – possibly to buy time to think up a better response – wants Apple to "be given leave to file a brief that complies with the rules and does not add any new matter or arguments."

Shakespeare's Henry VI Part 2, Act IV, Scene 2, Blackheath. Dick the Butcher speaks: "The first thing we do, let's kill all the Lawyers." ®

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